concurring.
I agree with the result reached by the majority as to the 8(a)(2) violations and as to the matters disposed of in sections IV and V of the main opinion. Since enforcement is being denied as to the 8(a)(1) and 8(a)(5) alleged violations, I will refrain from commenting on them.
I also agree with the determination, in the main opinion, that PHIS violated section 8(a)(3) in more than one instance and that backpay should be awarded. The evidence describing these violations is set forth in the main opinion and fully justifies a finding that PHIS was guilty of numerous violations.
It would appear that until on or about May 1, 1976, it would have been a futile gesture for the union members to make individual applications. In addition, it seems clear that it would have been a futile gesture for any of the local union officers to make application at any time thereafter. As to those employees who were rehired, no backpay is justified after the date of their reemployment.
There remains however a substantial number of former employees who did not make application at any time during the dispute or who made application and were refused reemployment. Based upon representations made in the supplemental brief of the Board filed in this court on November 17, 1978, concerning issues to be raised and determined in the compliance hearing, I agree that enforcement should be granted as to the backpay to be awarded to this last group of employees.
In its supplemental brief the Board recognizes that there may be several valid reasons fpr not rehiring or paying backpay to some of the former employees. It also correctly states that the burden of proving the existence of valid reasons for not rehiring each individual employee is upon the employer. NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1105 (8th Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977); NLRB v. Plastilite Corporation, 375 F.2d 343, 348 (8th Cir. 1967); NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963).
The Board indicates that at the compliance hearing it will determine whether the employees were not rehired because of anti-union animus or “because of legitimate considerations [such] as a reduction in force, the employees unavailability for work or their willful idleness." Board supplemental brief, page 3 (emphasis supplied). “[I]t remains incumbent upon MCDB and PHIS, as the wrongdoers, to establish that their backpay liability should be tolled at an appropriate date as to each individual employee, whether because of incapacity, lack of qualifications, or whatever legitimate rea*701son.” Board supplemental brief, page 4 (emphasis supplied). “MCDB and PHIS would also be able to mitigate their back-pay liability as to all the former employees with a showing as to their interim earnings.” 1 Board supplemental brief, page 3.
Based upon these representations by the Board in its supplemental brief concerning the factors to be considered in the compliance proceedings, I concur in the determination that a backpay award is justified by the 8(a)(3) violations in this case.
Chief Judge GIBSON and Judge HENLEY join in this concurring opinion.
. I assume the Board will require the cooperation of the employees in determining the amount of back wages to be offset by interim earnings since much of that information is known only to the employees. The burden should be placed upon the individual employees in the first instance to file their claims showing therein any mitigating earnings during the period in question.